Ehrenreich v Kwong

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 9471 of 1990

MARTIN EHRENREICH  and LISETTA EHRENREICH	Plaintiffs
v
FRANCIS KWONG and SHIRLEY KWONG	Defendants

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JUDGE:	Balmford J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 October 2002
DATE OF JUDGMENT:	12 November 2002
CASE MAY BE CITED AS:	Ehrenreich v Kwong
MEDIUM NEUTRAL CITATION:	[2002] VSC 477

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PRACTICE – Execution – Leave to issue execution when more than 6 years elapsed since judgment – Supreme Court Rule 68.02

Supreme Court (General Civil Procedure) Rules 1996 – Rule 68.02

Solic v Bertossa [1969] VR 594
Dennehy v Reasonable Endeavours Pty Ltd [2001] VSC 447
The Gramophone Company Limited v Leo Feist Incorporated (1928) 41 CLR 1
James v Federal Commissioner of Taxation (1955) 93 CLR 631

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr M J Corrigan	Jerrard and Stuk Lawyers
For the Secondnamed Defendant	Mr S W Stuckey	Lawcorp Lawyers

HER HONOUR:

1. This is an appeal from an order of Master Wheeler made on 24 September 2002 in the following terms:

1.the Plaintiffs have leave to issue a warrant of execution notwithstanding 6 years has elapsed since judgment took effect.

2.The Secondnamed Defendant pay the Plaintiffs’ costs.

By virtue of Rule 77.05(7) of the Supreme Court (General Civil Procedure) Rules 1996 (“the Rules”) the appeal is by re-hearing de novo of the application to the Master, which was brought by summons on 19 July 2002.

1. That application was brought pursuant to Rule 68.02 of the Rules, which reads, so far as relevant:

68.02Leave to issue warrant

(1)Notwithstanding Order 66, a warrant of execution to enforce a judgment shall not be issued without the leave of the Court in the following cases -

(a)where six years have elapsed since the judgment took effect;

..  .

(4)The application shall be supported by evidence on affidavit showing -

(a)where the judgment is for the payment of money, the amount, including any interest, due on the date of the application;

(b)where paragraph (1)(a) applies, the reasons for the delay;

..  .

(e)that the applicant is entitled to proceed to execution on the judgment; and

(f)that the person against whom execution is sought is liable to execution on the judgment.

1. On 23 October 1990, that is, over twelve years ago, Master Wheeler pronounced judgment in favour of the plaintiffs against the defendants in the sum of $124,309.20 together with costs.   A warrant of seizure and sale was issued on 22 November 1990, but was not executed as the defendants could not be located.   The events which followed are set out at [10] and following below.

1. On or about 6 September 2001 the plaintiffs received a communication relating to the debt, apparently deriving from a person engaged in the business of debt collection.   They then instructed their solicitors to make enquiries about the whereabouts of the defendants.   It was ascertained that the defendants had been the registered joint proprietors of the property known as 21 Fairview Street Hawthorn since…